1 The Honorable Benjamin H. Settle 2 6

LOWER ELWHA TRIBAL DEFS’ MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT 3:12-CV-05109-BHS

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23 Lower Elwha Klallam Tribe, Office of General Counsel 2851 Lower Elwha Rd, Port Angeles, WA 98363

(360) 452-8471

The Honorable Benjamin H. Settle

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WILD FISH CONSERVANCY, et al., Plaintiffs,

vs.

NATIONAL PARK SERVICE, et al., Defendants.

No. 3:12-CV-05109-BHS LOWER ELWHA TRIBAL DEFENDANTS’ MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT NOTE ON MOTION CALENDAR: May 4, 2012 ORAL ARGUMENT REQUESTED

INTRODUCTION

The Elwha River Ecosystem and Fisheries Restoration Act, Pub. L. No. 102–495, 106 Stat.

3173 (1992) (“Elwha Act” or “Act”), is the result of an extraordinary settlement among diverse

parties to remove the Elwha and Glines Canyon Dams and to restore the Elwha River’s

legendary fish runs. Stakeholders participating in the settlement include numerous Federal

Departments and Agencies; the Lower Elwha Klallam Tribe (“Tribe”); the state of Washington

(“State”), Clallam County, and the City of Port Angeles; private hydropower, industrial, and

Case 3:12-cv-05109-BHS Document 26 Filed 04/12/12 of 24


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economic development interests; commercial and sport fishermen; and the environmental

community. Removal of the dams, which commenced in September 2011, is a monumental

event—the largest dam removal to date in U.S. history. It is also of special importance to the

Tribe, whose Reservation straddles the lower Elwha River where it flows into the Strait of Juan

de Fuca. Over the course of the past century, the dams decimated the River’s fish runs by

blocking access to more than 90% of their habitat, and frustrated the Tribe’s treaty right to take

fish at all usual and accustomed grounds and stations.

As required by the Elwha Act, the United States, the Tribe, and the State cooperatively

developed the Elwha River Fish Restoration Plan (“Fish Restoration Plan” or “Plan”) as the

scientific framework to prevent the extirpation of ten different native fish species, including

threatened salmon and steelhead, from heavy sedimentation released during and after the

removal of the dams, and to facilitate the long-term recovery of those fish populations. The first

versions of the Plan appeared in 1994 and 1996, and the most recent version of the Plan appeared

in April 2008, in the form of a National Oceanic and Atmospheric Administration (“NOAA”)

Fisheries Technical Memorandum. Although the 191-page Plan does not itself carry out or

compel any action, it outlines dozens of activities that the three sovereigns have determined will

drive the Congressionally-mandated restoration effort.

Despite the comprehensive provisions of the Fish Restoration Plan carefully developed to

protect and to restore native Elwha River fish runs, Plaintiffs in this action cast aside the

consensus-based approach underlying the Elwha Act and the Plan. Plaintiffs assert eleven claims

for relief, all based on alleged procedural or substantive defects in the Plan, under the Elwha Act,

the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”), and the



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Wilderness Act. Plaintiffs request a sweeping injunction enjoining all activities described in the

Plan, and thus ask the Court to halt altogether the ongoing collaborative efforts to restore these

native fish populations.

The defendants to these claims are primarily numerous Federal Departments, Agencies, and

Officials, Compl. ¶¶ 138–181, 185–193, but Plaintiffs also assert a single claim under the ESA

against four employees of the Tribe in their official capacities—Robert Elofson, Larry Ward,

Doug Morrill, and Mike McHenry (“Elwha Defendants”). Id. ¶¶ 182–184. Plaintiffs contend that

the Elwha Defendants “are in violation of section 9 of the ESA for causing take of [fish listed as

threatened under the ESA] through the preparation, authorization, funding, and/or

implementation of the Fish Restoration Plan and the activities described therein.” Id. ¶ 183. This

bare legal conclusion is, however, unsupported by any factual allegations that the respective

Elwha Defendants are actually engaged in any activities that cause or threaten “take” of ESA-

listed fish or harm to Plaintiffs.

Plaintiffs’ complete failure to plead any facts with respect to the Elwha Defendants is fatal

to their claim here. In the absence of such factual allegations, Plaintiffs have necessarily failed to

establish their constitutional standing or to establish that their broad challenge to the Plan and

unspecified “activities described therein” is ripe for judicial review. Plaintiffs’ claim against the

Elwha Defendants should accordingly be dismissed for lack of subject matter jurisdiction. Fed.

R. Civ. P. 12(b)(1). Plaintiffs also fail to state a claim upon which relief can be granted, and

dismissal is therefore warranted. Fed. R. Civ. P. 12(b)(6). In the alternative, the Elwha

Defendants request under Federal Rule of Civil Procedure 12(e) that the Court order Plaintiffs to

file a more definite statement.



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BACKGROUND

I. Adverse Impacts of the Elwha and Glines Canyon Dams and the Origins and

Purpose of the Elwha River Ecosystem and Fisheries Restoration Act

In 1911, the Elwha River’s “legendary” salmon and steelhead, “some as big as 100 pounds,

. . . returned . . . to find a wall of concrete where more river had once been.” Declaration of

Stephen H. Suagee at 110 (“Suagee Decl.”) (Elwha River Ecosystem and Fisheries Restoration

Act: Hearing on S.2527 Before the S. Comm. on Energy and Natural Resources, 102d Cong. 35

(1992) (“S. Hrg.”)) (statement of Rep. Al Swift). In 1992, the Department of the Interior

explained the devastating impacts of the Elwha Dam (completed in 1913) and the Glines Canyon

Dam (completed in 1927) on these fisheries:

Historically, large runs of anadromous fish, including all five species of Pacific salmon (chinook, coho, pink, chum, and sockeye), steelhead and cutthroat trout, and Dolly Varden char returned from the ocean to spawn in the Elwha River. The runs of these fish have declined dramatically because the Elwha and Glines Canyon dams on the Elwha River block access to more than 65 miles, or 90 percent, of the spawning and rearing habitat formerly used by these fish, and prevent the replenishment of needed spawning gravel to the habitat still accessible below the lower dam. The upper Elwha River habitat, all of which is within Olympic National Park, is without salmon and steelhead. Lower Elwha River stocks of spring-run chinook salmon and pink salmon are at risk of extinction, while Elwha sockeye salmon may ready [sic] be extinct.

S. Rep. No. 102–447, at 9 (1992).

The impacts of the dams on the Tribe were equally devastating. The Tribe’s Chairperson

testified in support of the Elwha Act that the Tribe “has lived along the Elwha River for

countless generations” and that “[t]he River and the salmon are at the center of [its] way of life.”

Suagee Decl. at 123 (S. Hrg. at 76) (statement of Hon. Carla Elofson). In 1855, the Tribe signed



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the Treaty of Point No Point and “exchanged extensive landholdings on the Olympic Peninsula

for a number of promises by the federal government, including its undertaking to protect our

fisheries and provide us with a safe place to live.” Id.1 But the precipitous decline of the fisheries

caused by the dams effectively deprived the Tribe of its treaty right to take fish “at all usual and

accustomed grounds and stations” and destroyed its economic base. Id. at 123–126 (S. Hrg. at

76–79); see also, e.g., S. Rep. No. 102–447, at 5 (“Decline of the river’s salmon stocks caused

significant economic and cultural dislocations for the Lower Elwha Klallam Tribe and other

tribes holding treaty fishing rights to Elwha salmon.”); id. at 10 (“The dams inundate ‘usual and

accustomed fishing places’ reserved by treaty . . . . The Elwha Indian Reservation, located at the

mouth of the Elwha River has been subject to adverse impacts caused by the dams.”).

Elwha Dam also inundated the Tribe’s creation site and a traditional village just upstream

of the dam.2 Suagee Decl. at 124 (S. Hrg. at 77). During its initial construction in 1912, the

dam’s foundation blew out, causing serious flooding of the downstream village of Elwha, id. at

125 (S. Hrg. at 78), and forcing many of the Elwha people to move to Port Angeles Harbor,

where they eked out a living as squatters until the 1930s. Russell W. Busch, Tribal Advocacy for

Elwha River Dams Removal on Washington's Olympic Peninsula, 2 Golden Gate U. Envtl. L.J.

5, 7–8 (2008). In 1936 and 1937, the United States purchased several hundred acres along the

1 The Klallam village of ʔéʔɬxə, Elwha in English, located at the mouth of the Elwha River where the present-day Lower Elwha Reservation has been established, was one of eleven aboriginal Klallam villages represented in 1855 at the signing of the Treaty of Point No Point, 12 Stat. 933. The Treaty reserved the signatories’ pre-existing fishing rights, and this Court has affirmed the Tribe’s treaty right to take fish and has delineated the Tribe’s usual and accustomed grounds and stations. See United States v. Washington, 626 F. Supp. 1405, 1443 (W.D. Wash. 1985), and 459 F. Supp. 1020, 1049, 1066 (W.D. Wash. 1978) (Boldt, J.). 2 In addition to the village of ʔéʔɬxə (Elwha), at the mouth of the river, there were two other Klallam villages on the river: the village of k’ʷəč’aw’txʷ (Upper Elwha), located very near the Elwha Dam site; and the village of titiʔə́ɬ (Confluence of Indian Creek and Elwha River), located between the two dams at approximately river mile 7.5.



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(360) 452-8471

lower Elwha River and relocated a number of Elwha extended families there. Id. at 8. In 1968,

the Secretary of the Interior finally proclaimed these lands, which include the site of the treaty

signatory village of Elwha, see supra note 1, the Lower Elwha Reservation. Busch, supra, at 8.

Despite these impacts to the Tribe and to the fisheries relied upon by all citizens, the dams

enjoyed fierce support from certain public and private interests because the dams produced

substantial hydropower and supported significant economic activity and employment in the

region. During the 1980s, in the context of relicensing proceedings before the Federal Energy

Regulatory Commission (“FERC”), the Tribe began to develop formal support from various

parties for its goal of removing both dams. Id. at 9, 17–18. After years of negotiation, a

unanimous agreement was reached regarding a process to restore Elwha River fisheries and to

make the ultimate decision regarding whether removal of the dams would be necessary to

achieve restoration. The parties to this settlement, which became the Elwha Act, included

numerous Federal Departments and Agencies (including FERC, the National Park Service, the

United States Fish and Wildlife Service, the Bureau of Indian Affairs, and NOAA); the Tribe;

the State, Clallam County, and the City of Port Angeles; private hydropower, industrial, and

economic development interests; commercial and sport fishermen; and the environmental

community.

At the outset of the Senate hearing on the Elwha Act, Senator Bill Bradley, Chairman of

the Senate Subcommittee on Water and Power, remarked:

The bill we are considering today is an unusual measure and one that offers this committee an unusual privilege. . . . This has been worked out at the grassroots level in the State of Washington. The negotiators include timber companies and environmentalists, fishermen and paper mills, Native Americans and city officials, park administrators and economic



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development specialists. In my experience, [the bill] marks a singular achievement for these diverse groups who so often have had different priorities that overwhelmed their shared needs and opportunities.

Suagee Decl. at 102 (S. Hrg. at 1) (statement of Sen. Bill Bradley). Washington’s Congressional

delegation—Senators Brock Adams and Slade Gorton, and Representatives Al Swift, Norm

Dicks, and Jim McDermott—as well as Governor Booth Gardner, repeatedly emphasized that

passage of the Elwha Act was necessary to avoid protracted litigation between these disparate

interests and piecemeal adjudication of disputes concerning the dams and fisheries restoration.

See, e.g., id. at 110–11 (S. Hrg. at 35–36) (“The fact is the courts do not have the pallet, the

broad pallet, to deal with these kinds of issues the way we in a legislative body do. . . . Bringing

all the parties and all the divergent interests together to reach this compromise was no easy task.

It was accomplished, I think, because each of the parties came to understand that failure to reach

a consensus would likely lead to the courts deciding vital issues without the opportunity for

rationale compromise.”) (statements of Rep. Al Swift); see also id. at 106, 112, 115, 117–18 (S.

Hrg. at 31, 38, 41, 43–44). Congress approved the Elwha Act on October 24, 1992.

II. The Fish Restoration Plan and the Role of Hatcheries in Restoring Native

Elwha River Fish Populations

The April 2008 Fish Restoration Plan—“the scientific framework guiding efforts to return

successful, reproducing fish to the Elwha River basin following removal of the [dams]”—is the

result of twenty years of study and coordination following the passage of the Elwha Act. Suagee

Decl. at 13 (Nat’l Oceanic & Atmospheric Admin., U.S. Dep’t of Commerce, Elwha River Fish



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(360) 452-8471

Restoration Plan 1 (2008) (“Plan”)).3 The Plan (the first versions of which appeared in 1994 and

1996) was developed by the NOAA Northwest Fisheries Science Center, the National Park

Service, the United States Fish and Wildlife Service, the Washington Department of Fish and

Wildlife, and the Tribe. Id. Although the Plan does not carry out or compel any action, it

“identifies research, methodologies, and strategies required to preserve and restore Elwha River

fish populations before, during, and after removal of the Elwha and Glines Canyon dams,” and it

includes “descriptions of fish stock restoration, artificial propagation and habitat restoration

methods, population recovery objectives, and monitoring and adaptive management needs.” Id.

at 11 (Plan at ix). The Plan outlines detailed restoration strategies for ten different native Elwha

River fish species—Chinook, coho, chum, pink, and sockeye salmon, winter and summer

steelhead, coastal cutthroat trout, bull trout, and lamprey. Id. at 17–73 (Plan at 18–74).

The Plan, for example, discusses habitat restoration activities including, among other

things, large woody debris placement, floodplain reforestation, dike removal and modification,

nearshore restoration to protect bluff and estuarine habitat, and floodplain acquisition and

conservation easements. Id. at 75–78 (Plan at 79–82).4 The Plan also discusses in detail

numerous monitoring and adaptive management activities to measure the survival and recovery

3 The Fish Restoration Plan, which Plaintiffs cite throughout their complaint, is publicly available on the NOAA Northwest Fisheries Science Center website at http://www.nwfsc.noaa.gov/assets/25/6760_06202008_151914_ElwhaPlanTM90Final.pdf. The Elwha Defendants request that the Court take judicial notice of the Plan for purposes of this motion. Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001) (explaining that a court may take judicial notice of matters of public record on a motion to dismiss); Natural Res. Def. Council v. Kempthorne, 539 F. Supp. 2d 1155, 1167 (E.D. Cal. 2008) (taking judicial notice of “public record[s] available on official United States government websites” in dispute arising under the ESA). 4 Since 1994, the Tribe’s own stream restoration team has undertaken several successful habitat restoration efforts on the Elwha River, including the construction of engineered logjams, floodplain reforestation, the removal of impediments to channel migrations, and the reestablishment of lower river side-channel habitats. Suagee Decl. at 74 (Plan at 78).



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of native fish populations during and after the dam removal process. These activities include fish

counts and surveys, radio telemetry, genetic analysis, water quality and plankton sampling, fish

marking, and monitoring for reproductive success, disease, and ecosystem recovery. Id. at 79–99

(Plan at 95–115).

In addition, for each of the five species whose restoration plan includes a hatchery

supplementation component (Chinook, coho, chum, and pink salmon, and winter steelhead), the

Plan outlines a broad range of hatchery-related activities, including stock selection and genetic

analysis; production and escapement goals; broodstock collection techniques; incubation

methods and locations; releases and outplantings of eggs, fry, presmolts, smolts, and adults, and

the location thereof; captive brood programs; water treatment and delivery systems; reliance on

out-of-basin facilities; and the phasing out of hatchery supplementation altogether. Id. at 17–73

(Plan at 18–74).

Each of these hatchery programs will be the subject of a NOAA-approved Hatchery and

Genetic Management Plan (“HGMP”), which will identify and define the precise scope of the

activities associated with the implementation of the program, including measures calculated to

protect ESA-listed fish:

Hatchery protocols designed to achieve restoration goals are currently in development. Operational protocols implemented through this plan include hatchery management practices applied for decades, more recently derived practices designed to promote optimal overall fish survival in the hatchery and postrelease, and new conservation-based practices implemented in response to federal ESA listings of several local fish populations.



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Id. at 16 (Plan at 12). The HGMPs will be the culmination of two decades of governmental and

scientific collaboration, and the manifestation of Congress’s commitment in the Elwha Act to

restore native Elwha River fisheries.

The Fish Restoration Plan reflects the collective judgment of the United States, the Tribe,

and the State that hatchery programs are necessary both to prevent the extirpation of ESA-listed

and other native salmon and steelhead populations by sedimentation released during dam

removal and to aid in their restoration and recovery after dam removal is complete. See, e.g., id.

at 17 (Plan at 18) (“[F]or ESA-listed and candidate species (Chinook and coho salmon, bull

trout, and steelhead) extirpation resulting from dam removal is not an acceptable option.”); id. at

14 (Plan at 8) (“The role of the WDFW and Elwha tribal hatcheries throughout the restoration

effort is to preserve extant populations during dam removal and to help initiate recolonization of

the watershed through the temporary supplementation of key species in the basin following dam

removal. These hatchery facilities will be safe havens, serving as gene banks for Elwha River

fish populations, protecting fish from predicted high sediment loads in the river during the dam

removal process, and ensuring that no year-class of fish is lost because of dam removal

activities.”); id. at 43 (Plan at 44) (“The remaining late-timed [steelhead] run is at a very low

population level and many not survive dam removal [without hatchery supplementation].”); id. at

53–54 (Plan at 54–55) (stating that because the pink salmon population “may not survive

sedimentation impacts associated with dam removal,” “maintenance of the native gene pool

through a captive brood program will be the highest priority for this species”).5

5 See also Suagee Decl. at 12 (Plan at x) (“Hatcheries will be used to ensure an adequate number of fish survive the removal process to effectively preserve and restore currently extant fish populations in the watershed.”); id. at 15 (Plan at 10) (“The choice to use hatcheries to supplement the restoration effort has been driven by the high risk



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It is well-established that fish hatcheries may play an appropriate role under the ESA in the

conservation and recovery of threatened species. In Trout Unlimited v. Lohn, 559 F.3d 946, 956–

59 (9th Cir. 2009), the Ninth Circuit held that the ESA identifies “artificial propagation . . . as a

means ‘to bring any endangered species or threatened species to the point at which the measures

provided pursuant to this Act are no longer necessary,’” (quoting 16 U.S.C. § 1532(3)), and

deferred to NOAA Fisheries’ determination “regarding the genetic and behavioral differences

between natural and hatchery fish” and its “evaluation . . . [of] both the positive and negative

effects of hatchery fish on the viability of natural populations.” See also Alsea Valley Alliance v.

Evans, 161 F. Supp. 2d 1154, 1157 (D. Or. 2001) (“The ESA also recognizes that conservation

of listed species may be facilitated by artificial means.”). Indeed, hatchery-spawned Elwha River

Chinook salmon are included within the threatened Puget Sound Chinook salmon evolutionarily

significant unit (“ESU”), see Endangered and Threatened Species: Final Listing Determination

for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened

Salmonid ESUs, 70 Fed. Reg. 37,160, 37,175 (June 28, 2005), and hatchery-spawned Elwha

River steelhead are included within the threatened Puget Sound steelhead ESU, see Suagee Decl.

at 38 (Plan at 39) (“The hatchery population derived from late-timed, natural-origin steelhead

and produced for use in restoration is included in the ESU . . . .”).

Moreover, it was widely recognized when Congress passed the Elwha Act that hatchery

programs would be a necessary component of not only the effort to prevent the extirpation of the

fish runs but also the effort to restore them. The United States General Accounting Office, for

during dam removal of losing stocks of fish identified as unique, threatened, or endangered.”); id. at 31 (Plan at 32) (discussing the use of hatchery programs “[t]o address the risk of catastrophic loss of the Elwha River [Chinook salmon] population during dam decommissioning”).



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example, testified that “FERC estimated that new fish hatchery facilities needed to restore

fisheries upriver from the dams would cost $3.1 million to construct and $2 million over 10 years

to operate,” Suagee Decl. at 159 (Elwha River Ecosystem and Fisheries Restoration: Joint

Hearing on H.R. 4844 Before the Subcomm. on Energy and Power of the Comm. on Energy and

Commerce, et al., 102d Cong. 64 (1992) (“H. Hrg.”)), and Senator Frank Murkowski commented

that “since you don’t have an anadromous run coming back you are going to have to enhance by

bringing in, either through a hatchery or planting fry or whatever, to develop those runs again,”

id. at 119 (S. Hrg. at 67). Fifteen environmental organizations, including Friends of the Earth, the

Sierra Club, Trout Unlimited, and American Rivers, submitted at the Senate and House hearings

a NOAA report noting that the restoration prospects for Chinook and sockeye salmon would

depend upon broodstock availability and the success of artificial propagation programs. Id. at

147–48 (S. Hrg. at 150–51); id. at 171–73 (H. Hrg. at 94–96). Similarly, the Tribe explained that

its hatchery programs would contribute to the restoration of native fish runs. Id. at 138–39, 150

(S. Hrg. at 91–92, 154). Hatchery programs have therefore been a component of each version of

the Fish Restoration Plan released since the passage of the Elwha Act.

III. Plaintiffs’ Claim Against the Elwha Defendants

Plaintiffs name four employees of the Tribe as defendants in their official capacities—

Robert Elofson, Larry Ward, Doug Morrill, and Mike McHenry—and allege in conclusory

fashion that they “are in violation of section 9 of the ESA for causing take of threatened Puget

Sound Chinook salmon, threatened Puget Sound steelhead, and threatened bull trout through the

preparation, authorization, funding, and/or implementation of the Fish Restoration Plan and the



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activities described therein.” Compl. ¶¶ 29–32, 183.6 Plaintiffs’ 41-page complaint, however,

makes no other mention of the Elwha Defendants. Plaintiffs fail to allege that the Elwha

Defendants are actually engaged in any activities that cause or threaten “take” of ESA-listed fish

or injury to Plaintiffs. That is, the complaint contains no factual allegations that the respective

Elwha Defendants are even engaged in the implementation of any of the hatchery-related, habitat

restoration, or monitoring and adaptive management activities outlined in the Plan, let alone that

their implementation of such activities causes harm.7

Plaintiffs broadly allege that hatchery programs adversely affect the recovery of native fish

populations and produce impacts that constitute unlawful “take.” Id. ¶¶ 110–114, 116. But

nowhere do Plaintiffs allege that the Elwha Defendants are engaged in hatchery-related activities

that cause these impacts, or that any such activities are imminent. Plaintiffs, moreover, fail to

distinguish among the five different hatchery programs outlined in the Plan—Chinook, coho,

pink, and chum salmon, and winter steelhead—and the numerous activities discussed in

connection with each program, including stock selection and genetic analysis; production and

escapement goals; broodstock collection techniques; incubation methods and locations; releases

and outplantings of eggs, fry, presmolts, smolts, and adults, and the location thereof; captive

brood programs; water treatment and delivery systems; reliance on out-of-basin facilities; and the

phasing out of hatchery supplementation altogether. 6 Plaintiffs make the same broad allegation against the Federal Defendants, Compl. ¶ 178, but in contrast to their bare claim against the Elwha Defendants, also make numerous factual allegations with respect to the various Federal Defendants, e.g., id. ¶¶ 119–137. 7 In fact, only one of the Elwha Defendants is alleged to have any connection at all to the Fish Restoration Plan. Compl. ¶ 30 (“Mr. Ward is listed as a co-author of the Fish Restoration Plan.”). The mere co-authorship of a technical document, however, plainly does not satisfy the ESA definition of “take.” See 16 U.S.C. § 1532(19) (“take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”).



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Despite their failure to make any factual allegations with respect to the Elwha Defendants,

Plaintiffs nevertheless ask this Court for an injunction requiring the Elwha Defendants “to

comply with the ESA” and barring them “from authorizing, funding, and/or implementing the

Fish Restoration Plan and the activities described therein until compliance with NEPA, the ESA,

the Elwha Act, the Wilderness Act, and the APA is achieved” (even though Plaintiffs do not

allege that the Elwha Defendants have violated NEPA, the Elwha Act, the Wilderness Act, or the

APA). Compl. ¶¶ L–M. As demonstrated below, Plaintiffs’ vague, overbroad claim and request

for relief against the Elwha Defendants should be dismissed.

ARGUMENT

Plaintiffs have not pleaded sufficient facts to establish their constitutional standing or to

establish that they have any dispute with the Elwha Defendants that is ripe for judicial review.

This Court should accordingly dismiss Plaintiffs’ claim against the Elwha Defendants for lack of

subject matter jurisdiction. Plaintiffs’ failure to make any factual allegations against the Elwha

Defendants also requires dismissal of the complaint for failure to state a claim upon which relief

can be granted. If the Court concludes that Plaintiffs’ claim should not be dismissed on this

motion, Plaintiffs should be ordered to file a more definite statement.

I. Plaintiffs’ Claim Against the Elwha Defendants Should Be Dismissed for Lack

of Subject Matter Jurisdiction

Constitutional standing and ripeness are core components of the Article III case or

controversy requirement, and are prerequisites to the federal courts’ exercise of subject matter

jurisdiction. See Allen v. Wright, 468 U.S. 737, 750 (1984); Chandler v. State Farm Mut. Auto.



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Ins. Co., 598 F.3d 1115, 1121–22 (9th Cir. 2010). “The party asserting federal subject matter

jurisdiction bears the burden of proving [the] existence” of constitutional standing and ripeness.

Chandler, 598 F.3d at 1122. Plaintiffs fail to satisfy these requirements with respect to the Elwha

Defendants, and their claim should accordingly be dismissed for lack of subject matter

jurisdiction. See Fed. R. Civ. P. 12(b)(1); Chandler, 598 F.3d at 1122–23.

A. Plaintiffs lack constitutional standing as to the Elwha Defendants.

To satisfy minimum constitutional standing requirements, a plaintiff must establish “(1) he

or she has suffered an injury in fact that is concrete and particularized, and actual or imminent;

(2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be

redressed by a favorable court decision.” See Salmon Spawning & Recovery Alliance v.

Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992)); see also Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).

Plaintiffs fail to allege sufficient facts to satisfy any of the elements of standing with respect to

their claim against the Elwha Defendants.8

Plaintiffs allege that “Defendants’ violations” have caused harm to their interests and that

the Elwha Defendants’ preparation, authorization, funding, and implementation of the Fish

Restoration Plan violates the ESA. Compl. ¶¶ 14–18, 183. These vague, conclusory statements,

however, are accompanied by no factual allegations that the Elwha Defendants are actually

engaged in any activities that cause any concrete, actual or imminent injury to Plaintiffs.

8 The elements of constitutional standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, [and thus] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).



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Plaintiffs fail to make any “factual allegations of injury” that have any “causal connection” to the

Elwha Defendants’ conduct. See Defenders of Wildlife, 504 U.S. at 560–61; see also Ecological

Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000) (“The issue in the

causation inquiry is whether the alleged injury can be traced to the defendant’s challenged

conduct, rather than to that of some other actor not before the court.”) (citation omitted).9

Plaintiffs therefore fail to establish any particularized “injury in fact” that is “fairly traceable” to

the Elwha Defendants, and fail to establish that injunctive relief against those defendants would

redress any such injury. Plaintiffs accordingly lack constitutional standing and their claim should

be dismissed.

B. Plaintiffs’ claim is not ripe for judicial review.

Plaintiffs also fail to plead sufficient facts to establish that they have any dispute with the

Elwha Defendants that is ripe for judicial review. To determine whether a claim is ripe, the

federal courts must evaluate “(1) the fitness of the issues for judicial decision and (2) the

hardship to the parties of withholding court consideration.” See Nat’l Park Hospitality Ass’n v.

Dep’t of Interior, 538 U.S. 803, 808 (2003).

Plaintiffs assert a broad, undifferentiated challenge to “the Fish Restoration Plan and the

activities described therein.” Compl. ¶¶ 183, M. The Plan itself, however, does not carry out or

compel the Tribe or its employees to undertake any of the dozens of activities outlined in the

9 Plaintiffs’ principal injury and objection to the Fish Restoration Plan appears to be grounded in the alleged failure of the Federal Defendants to comply with the procedural requirements of various environmental statutes. See Compl. ¶ 16 (alleging that Plaintiffs “have suffered procedural and informational harms,” that “Plaintiffs and their members rely, in part, on ESA consultation and NEPA evaluation processes to provide public information,” and that “Defendants’ failure to comply with these statutes . . . has deprived Plaintiffs and their members of public comment opportunities and public information”).



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Plan to protect and to restore native Elwha River fish runs. Cf. Ohio Forestry Ass’n v. Sierra

Club, 523 U.S. 726, 733 (1998) (holding that agency decisions are not ripe where “they do not

command anyone to do anything or to refrain from doing anything; they do not grant, withhold,

or modify any formal legal license, power, or authority; . . . they create no legal rights or

obligations”). Whether and how the Tribe actually implements particular activities is contingent

upon numerous factors, including available funding and the outcome of further review by

fisheries experts. Plaintiffs’ claim thus “involves uncertain or contingent future events that may

not occur as anticipated, or indeed may not occur at all,” see Chandler, 598 F.3d at 1122–23

(quotation marks and citations omitted), and any dispute with the Elwha Defendants would

“benefit from further factual development” prior to judicial review, see Ohio Forestry Ass’n, 523

U.S. at 733.

Plaintiffs’ broad allegations, moreover, indicate that their principal objection to the Fish

Restoration Plan is in the nature of an “abstract disagreement,” see Abbott Labs. v. Gardner, 387

U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977),

with the United States, the Tribe, and the State regarding the appropriate role of hatchery

programs in the restoration of native fish runs, rather than a concrete dispute over particular

activities in which the Elwha Defendants are currently engaged. Cf. Ohio Forestry Ass’n, 523

U.S. at 736–37 (discussing the Court of Appeals’ review of the agency’s alleged “bias in favor of

timber production and clearcutting” in the absence of “factual components . . . fleshed out, by

some concrete action”). Further, it is not evident how deferring judicial review would result in

any hardship to Plaintiffs at this time. Hatchery programs have always been contemplated as part

of the Elwha River restoration effort—in 1992 when Congress passed the Act, again in 1994 and



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1996 when the first versions of the Plan were released, and yet again in April 2008 when the

current version of the Plan was released. Plaintiffs have therefore not established that any dispute

with the Elwha Defendants is ripe for review and their claim should be dismissed.

II. Plaintiffs’ Claim Against the Elwha Defendants Should Be Dismissed for

Failure to State a Claim Upon which Relief Can Be Granted

Plaintiffs also fail to state a claim against the Elwha Defendants upon which relief can be

granted. The Supreme Court has held that Rule 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation,” explaining:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citations omitted). Here,

Plaintiffs’ “naked assertion” that the Elwha Defendants have violated the ESA, Compl. ¶ 183, is

a “conclusory statement” utterly devoid of “further factual enhancement.” See Iqbal, 556 U.S. at

678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Because Plaintiffs’

allegation is a bare legal conclusion, it is not entitled to “the assumption of truth” on a motion to

dismiss. See id. at 679.

To state a claim against the Elwha Defendants under the ESA, Plaintiffs must establish

“proximate causation.” See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S.

687, 700 n.13 (1995); see also Defenders of Wildlife v. Envtl. Prot. Agency, 420 F.3d 946, 962–

63 (9th Cir. 2005), reversed on other grounds sub nom. Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 644 (2007) (adopting the Dep’t of Transp. v. Public Citizen, 541



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U.S. 752 (2004), NEPA causation standard “for purposes of determining the likely effects of

agency action under section 7(a)(2) of the Endangered Species Act”). Plaintiffs must also

demonstrate “[a] reasonably certain threat of imminent harm to a protected species.” See

Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir.1996). Yet Plaintiffs fail to allege any

facts plausibly showing that Mr. Elofson, Mr. Ward, Mr. Morrill, or Mr. McHenry is engaged in

any activities that are a proximate cause of unlawful “take” or that create a threat of imminent

harm to ESA-listed fish. Cf. Cold Mountain v. Garber, 375 F.3d 884, 890 (9th Cir. 2004) (“Cold

Mountain has failed to establish a causal link between any alleged hazing violations and the

Ridge nest failure.”); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 787

(9th Cir.1995) (explaining that in Pyramid Lake Paiute Tribe v. U.S. Dep’t of the Navy, 898 F.2d

1410, 1420 (9th Cir.1990), “the defect of the plaintiff’s claim lay in the lack of a causal

connection between the challenged action and the alleged injury to the protected species”).

The decision of the United States District Court for the Northern District of California in

Gregory Village Partners, L.P. v. Chevron U.S.A., Inc., 805 F. Supp. 2d 888 (N.D. Cal. 2011), is

instructive. In that case, the court first reviewed the elements of a cause of action under the

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and

the Resource Conservation and Recovery Act (“RCRA”), then determined that plaintiff had

failed to allege sufficient facts regarding those elements to support its conclusory allegations that

defendants had violated CERCLA and RCRA, and accordingly dismissed plaintiff’s claims. See

Gregory Village Partners, 805 F. Supp. 2d at 897–99 (citing Ashcroft v. Iqbal, 556 U.S. 662).

Similarly, Plaintiffs fail here to allege sufficient facts to support the elements of a cause of action



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against the Elwha Defendants under the ESA, and their claim should be dismissed. See Fed. R.

Civ. P. 12(b)(6).

III. In the Alternative, Plaintiffs Should Be Ordered to File a More Definite

Statement

If the Court concludes that Plaintiffs’ claim against the Elwha Defendants should not be

dismissed on this motion, Plaintiffs should be required to file a more definite statement. Rule

12(e) provides in relevant part that “[a] party may move for a more definite statement of a

pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the

party cannot reasonably prepare a response.” Plaintiffs’ complaint “fails to specify the

allegations in a manner that provides sufficient notice” to the respective Elwha Defendants of

their alleged violations of the ESA, and a more definite statement is therefore appropriate. See

Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002); see also United States v. Employing

Plasterers Ass’n of Chicago, 347 U.S. 186, 189 (1954) (“If a party needs more facts, it has a

right to call for them under Rule 12(e) . . . .”).

The complaint is defective in three respects—(1) it fails to allege that the respective Elwha

Defendants are engaged in any activities that cause or threaten “take,” (2) it fails to identify the

particular activities in the Fish Restoration Plan alleged to cause “take,” and (3) it fails to specify

the scope of injunctive relief sought. Cf. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996)

(holding that the district court possesses discretion to “require such detail as may be appropriate

in the particular case”).

First, as discussed above, Plaintiffs fail to allege any facts showing that the Elwha

Defendants are engaged in activities that cause or threaten unlawful “take.” In the absence of



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specific factual allegations directed at Mr. Elofson, Mr. Ward, Mr. Morrill, and Mr. McHenry,

they have no notice as to their activities, if any, alleged to be in violation of the ESA, and cannot

in good faith answer the complaint. Second, Plaintiffs’ sweeping challenge to “the Fish

Restoration Plan and the activities described therein,” Compl. ¶ 183, fails to distinguish between

those hatchery-related, habitat restoration, and monitoring and adaptive management activities

that they allege to cause “take,” and those that they do not. A more definite statement is therefore

warranted. Cf. Sierra Club, Hawaii Chapter v. City & County of Honolulu, 415 F. Supp. 2d

1119, 1128 (D. Haw. 2005) (ordering plaintiffs to clarify “the factual circumstances surrounding

any alleged failure” by the defendant to comply with the terms of an order under the Clean Water

Act); Clark v. McDonald’s Corp., 213 F.R.D. 198, 234 (D.N.J. 2003) (“[T]here is a ‘shotgun’

component to Plaintiffs’ amended complaint, which does not discriminate between the

restaurants known to be in violation of the ADA from those which are not.”).

Third, a more definite statement is appropriate because the complaint, on its face, seeks to

enjoin any and all activities associated with the authorization, funding, and implementation the

Fish Restoration Plan. Compl. ¶ M. These activities were, however, carefully developed by the

United States, the Tribe, and the State to prevent the extirpation and to advance the recovery of

native Elwha River fish populations, including threatened salmon and steelhead, during and after

the removal of the dams, as mandated by Congress in the Elwha Act. To the extent Plaintiffs in

fact seek such radical injunctive relief, which itself would, perversely, cause “take” of ESA-

listed fish, they should clarify their intent at the outset of this action.

Indeed, the federal courts have recognized that plaintiffs should specify the scope of the

injunctive relief that they seek in cases arising under the ESA. For example, in Hawaiian Crow



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(‘Alala) v. Lujan, 906 F. Supp. 549, 553 (D. Haw. 1991), the court ordered plaintiffs “to specify

whether they seek to compel access only to essential habitat locations delineated in the Plan or to

both the essential habitat lands and additional portions of the McCandless Ranch property.” The

court explained that “[t]he McCandless defendants are entitled to know whether plaintiffs intend

to demand access by the federal defendants only to essential habitat locations within the

McCandless Ranch’s boundaries or to all portions of the Ranch.” See Hawaiian Crow (‘Alala),

906 F. Supp. at 553. Similarly, in Natural Res. Def. Council v. Kempthorne, 539 F. Supp. 2d

1155, 1191 (E.D. Cal. 2008), the court ordered plaintiffs to “clarify whether or not they seek

relief against the absent contractors’ water service contracts. If the third supplemental complaint

seeks relief against all water service contracts, Plaintiffs shall provide a list designating each

contract and the contracting party.”

The Elwha Defendants are likewise entitled to notice of the scope of injunctive relief

sought by Plaintiffs with respect to the activities described in the Fish Restoration Plan. Each

day, the Tribe invests substantial human and financial resources in its effort to restore the native

Elwha River fish runs that have been the lifeblood of the Lower Elwha Klallam people since

time immemorial. The scope of relief sought may affect the Tribe’s decision-making regarding

whether and how to implement particular activities that Plaintiffs may purport to challenge. A

more definite statement may therefore also help facilitate the timely settlement of Plaintiffs’

claim. Cf. Hawaiian Crow (‘Alala), 906 F. Supp. at 553 (“The court notes that the specificity the

McCandless defendants request could obviate the need for this lawsuit, since they may be willing

to provide access voluntarily if the affected area is limited.”).



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CONCLUSION

Plaintiffs purport to challenge in its entirety a consensus-based scientific framework

developed by three sovereigns and fisheries experts over the course of two decades to fulfill

Congress’s mandate in the Elwha Act to protect and to restore the Elwha River’s native fish runs.

Plaintiffs assert a single claim against four employees of the Lower Elwha Klallam Tribe, but fail

to allege that they are engaged in any activities that cause or threaten the unlawful “take” of

ESA-listed fish. Plaintiffs therefore fail to establish their constitutional standing, fail to establish

that any dispute with the Elwha Defendants is ripe for judicial review, and fail to state a claim

upon which relief can be granted. Plaintiffs’ claim should accordingly be dismissed. In the

alternative, Plaintiffs should be ordered to file a more definite statement.

DATED this 12th day of April, 2012.

Respectfully submitted,

s/ Stephen H. Suagee s/ Trent S.W. Crable Stephen H. Suagee, WSBA # 26776 Trent S.W. Crable, WSBA # 38227 Office of General Counsel Lower Elwha Klallam Tribe 2851 Lower Elwha Rd. Port Angeles, WA 98363 (360) 452-8471 [email protected] [email protected] Attorneys for the Elwha Defendants



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s/ Cory J. Albright s/ John C. Sledd s/ Jane G. Steadman Cory J. Albright, WSBA # 31493 John C. Sledd, WSBA # 19270 Jane G. Steadman, WSBA # 44395 KANJI & KATZEN, PLLC 401 Second Ave. S., Suite 700 Seattle, WA 98104 Phone: 206-344-8100 Fax: 866-283-0178 [email protected] [email protected] [email protected] Co-Counsel for the Elwha Defendants


1 The Honorable Benjamin H. Settle 2 6

Documents

Transcript of 1 The Honorable Benjamin H. Settle 2 6